FWCFB 1663
FAIR WORK COMMISSION
New South Wales Bar Association
Fair Work Act 2009
s.604 - Appeal of decisions
JUSTICE ROSS, PRESIDENT
MELBOURNE, 13 MARCH 2014
Appeal against decision in transcript of Commissioner Riordan at Sydney on 5 December 2013 in matter number U2013/12597.
Introduction and background
 The New South Wales Bar Association (Association) is an incorporated association of barristers practising in New South Wales. It has appealed a decision of Commissioner Riordan, issued ex tempore on 5 December 2013 (Decision), in which the Commissioner refused permission for a party in an unfair dismissal proceeding before him to be represented by counsel.
 The circumstances in which the Commissioner made the Decision require some explanation. The matter before him was an application by Mr Brett McAuliffe for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The respondent to that application was the Commonwealth of Australia, represented by the Australian Taxation Office (ATO). Mr McAuliffe’s application was ultimately listed for hearing on 5-6 December 2013.
 On 15 November 2013 the solicitors acting for the ATO, Norton Rose Fulbright, sent by email a letter to the Commission’s Unfair Dismissal Case Management Team (Case Management Team) in which it made an application under s.596 of the Act for permission to be represented by a lawyer. The application was framed in paragraph 1.1 of the letter in the following way:
“Pursuant to section 596 of the Fair Work Act 2009 (Cth), the Respondent seeks the permission of the Fair Work Commission for a lawyer to represent it in this matter, specifically by way of Counsel, appearing on behalf of the Respondent at the final hearing, instructed by Norton Rose Fulbright.”
 The letter went on to state that the identity of counsel would be confirmed with the Commission once counsel was briefed, and that Mr McAuliffe’s solicitor, Mr Paul Macken, had indicated that he himself would be seeking permission to appear in the matter and did not oppose the ATO seeking permission to be represented by counsel. The letter also identified the grounds of the application, which included that the matter involved a jurisdictional objection requiring analysis of certain provisions of the Act, that Mr McAuliffe would be represented by “an experienced and legally qualified advocate” (in the shape of Mr Macken), and that neither party opposed the other being legally represented.
 The Commission’s records indicate that the ATO’s solicitors were informed by the Case Management Team on 19 November 2013 that the ATO’s request for permission to be legally represented would be determined by the member of the Commission allocated to hear the matter. The ATO formally briefed Mr Bryce Cross of counsel in the matter on 27 November 2013. The Case Management Team allocated the matter to be heard by the Commissioner on 28 November 2013.
 On 4 December 2013 the Commissioner conducted a telephone conference in respect of the matter for the purpose of dealing with some procedural issues and identifying whether the matter was capable of settlement. At this conference Mr McAuliffe was represented by Mr Macken and the ATO by Mr Jason Noakes, a solicitor from Norton Rose Fulbright. The conference was not recorded, but it is not in dispute that, during the course of this conference, the Commissioner gave an indication to Mr Noakes that he did not consider that counsel was required for the matter, and that on being informed that the ATO had briefed counsel in the matter stated that he would deal with the question of representation at the commencement of the hearing the following morning.
 The hearing on 5 December 2013 commenced with Mr Macken seeking permission to appear for Mr McAuliffe. The transcript of the hearing does not disclose that such permission was ever expressly granted, although it is possible that the Commissioner proceeded on the basis that he had granted permission to Mr Macken at the telephone conference the previous day. Mr Cross then made an application for permission to appear for the ATO. In response to this application, the Commissioner said that “I have some concerns which I enunciated to Norton Rose yesterday”, but indicated that he would hear Mr Cross’s submission in support of his application. Mr Cross then made a submission in which, among other things, he stated that the matter raised some complex jurisdictional issues which meant that the matter could be dealt with more efficiently by the grant of permission for legal representation, and that the refusal of permission to appear would be unfair to the ATO because, in the absence of any prior ruling on the ATO’s application for permission for legal representation, the case had been prepared on the basis that counsel would be appearing in the matter.
 Mr Macken then made a submission in response in which he now opposed permission to be granted to the ATO to be represented by Mr Cross. In the course of his submissions, he said that he “certainly left yesterday’s directions hearing with the clear understanding that the respondent would be represented by Mr Noakes”, and that there was now a disparity in representation which made it not appropriate to grant the permission for which the ATO had applied. Having heard these submissions, the Commissioner then announced his decision in the following terms: “Yes, Mr Cross I made it clear yesterday what my view was and permission is denied.”
 It was then necessary for the Commissioner to grant the ATO a short adjournment because Mr Noakes was involved in a telephone conciliation conference in another matter. When the matter resumed after the adjournment, Mr Cross asked the Commissioner for his reasons for the refusal of the application for permission for him to appear. The Commissioner then gave the following reasons:
“I am of the view that it would be unfair to the applicant for the respondent to be represented by counsel. I made my view clear yesterday in that regard and that was the reason.”
 Mr Cross then withdrew, and Mr Noakes appeared for the ATO, saying “Good morning, Commissioner, Noakes, initial J, solicitor, with permission on behalf of the respondent”. The transcript does not disclose that the Commissioner granted the ATO permission to be represented by Mr Noakes at any stage during the hearing on 5 December 2013, but it is apparent that Mr Noakes regarded such permission as already having been granted - presumably as a result of something which occurred at the previous day’s telephone conference.
 After a further short adjournment, the hearing then proceeded with Mr Macken representing Mr McAuliffe and Mr Noakes representing the ATO. The hearing was completed that day, and the Commissioner reserved his decision. The decision remains reserved as at the time of the hearing of this appeal.
 The Association submitted that it was a “person who is aggrieved by a decision” made by a single member of the Commission for the purposes of s.604(1) of the Act, on the basis that the Decision to refuse permission for Mr Cross, who was a member of the Association, to represent the ATO affected Mr Cross’s individual professional interests and additionally affected the class of persons who are members of and represented by the Association. In this connection the Association cited Tweed Valley Fruit Processors Pty Ltd v Ross 1 and Australian Industry Group and Pacific Brands Limited t/a Dunlop Foams2 in support of the proposition that the class of persons who may be aggrieved by a decision is not confined to those whose legal interests are affected by the decision but extends to persons with an interest in the decision beyond that of an ordinary member of the public.
 The Association contended that the Decision was attended by error in three respects:
(1) Section 596 authorised permission to be granted in respect of a “lawyer or paid agent”. “Lawyer” is defined in s.12 of the Act to mean “a person who is admitted to the legal profession by a Supreme Court of a State or Territory”. The use of the word “lawyer” meant that the section did not authorise any distinction to be made for the purpose of the grant or refusal of permission for representation between barristers and solicitors, who are all lawyers for the purpose of the definition in s.12. The Commissioner erred in deciding permission for representation on the basis of such a distinction.
(2) The reasons given for the Decision (earlier quoted) did not conform to any of the statutory pre-requisites in respect of permission for representation identified in s.596(2). A failure to consider and determine the question of representation by reference to those statutory prerequisites may constitute jurisdictional error: Warrell v Walton 3. There was no basis for the Commission to proceed on the basis that representation by counsel, as distinct from a solicitor, would necessarily cause unfairness to anyone.
(3) The delay in not determining the question of permission for representation by a lawyer until the morning of the hearing itself constituted error. Such delay involved the potential for prejudice to a party, including the lack of any alternative person being in a position to conduct the hearing or alternatively a lack of preparation on the part of somebody required to conduct the matter at short notice, and the throwing away of costs expended on lawyers who are required to prepare for the hearing of a matter but are refused permission to appear at the hearing.
 In respect of permission to appeal, the Association submitted that such permission should be granted in the public interest because:
(1) the issue of representation, including by barristers, was one which arose very frequently in matters before the Commission, and thus the appeal raised an important question of principle relating to the Commission’s jurisdiction;
(2) the right of litigants to exercise their choice as to whether to be represented by a barrister or a solicitor needed to be protected;
(3) the text and purpose of s.596 had to be upheld in a way which did not discriminate between the type of lawyer in respect of whom permission was granted;
(4) the orderly preparation of cases before the Commission required affirmation of the need to decide issues of representation at an appropriately early stage.
 The Association submitted that if permission to appeal was granted and the appeal upheld, the appropriate course would be to set aside the Decision. It did not otherwise seek any orders which would have the effect of disturbing the Commissioner’s consideration or determination of Mr McAuliffe’s unfair dismissal remedy application.
 The ATO made submissions supporting the Association’s appeal insofar as its first and second alleged errors were concerned. It emphasised that s.596 of the Act referred to lawyers as a generic class and made no distinctions between barristers and solicitors; this was to be contrasted to the position which prevailed immediately before the enactment of the Act, when s.100 of the Workplace Relations Act 1996 (Cth) provided for the grant of leave to be represented by “counsel, solicitor or agent” and required the Commission in deciding whether or not to grant leave to have regard to “whether being represented by counsel, solicitor or agent would assist the party concerned to bring the best case possible” and “the capacity of the particular counsel, solicitor or agent” to represent the party concerned and assist the Commission in the performance of its statutory functions. 4 The ATO submitted that, by contrast, s.596 provided no ground of distinction between lawyers, whether on the grounds that any particular lawyer is a barrister or solicitor, or has or does not have a practising certificate, or has or does not have any particular capacity. Although the ATO did not in terms support the Association’s alleged third error, it nonetheless affirmed the desirability of applications for permission for representation to be determined as soon as practicable consistent with paragraphs 48 and 49 of the Commission’s Fair Hearings Practice Note, and contended that in the proceedings before the Commissioner it had incurred unnecessary costs in briefing Mr Cross to prepare for the case and to attend the Commission on the appointed hearing day.
 The ATO was anxious that the appeal not lead to the making of any order that disturbed the decision-making process of the Commissioner or the validity of any decision to be made by him. It conceded that the Decision had not caused it any prejudice in its conduct of the hearing before the Commissioner and could not therefore constitute a ground of appeal against the substantive decision to be issued by the Commissioner.
 Mr McAuliffe appeared in the appeal, represented by Mr Macken. He contended that at the telephone directions hearing on 4 December 2013, the Commissioner had granted permission to appear to Mr Macken, and to Mr Noakes on behalf of the ATO. Beyond that, noting that the Association did not seek any orders in the appeal which interfered with the substantive proceedings before the Commissioner, Mr McAuliffe did not seek to make any submissions in respect of the appeal.
 Section 596 of the Act, which regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, provides as follows (excluding statutory notes):
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
 The proper interpretation of this provision was the subject of consideration by the Federal Court (Flick J) in Warrell v Walton 5, in which the Court said:
“ A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”
 Warrell concerned an application for judicial review of a decision of a Full Bench of Fair Work Australia dismissing an appeal from a decision to refuse an application for an extension of time to file an unfair dismissal application. At the hearing of the extension of time application, the respondent (Bacto Laboratories) had been represented by a lawyer, but permission for that lawyer to appear had never expressly been granted. The Court accepted a submission that the hearing was not “fair and just” (as required by s.577(a) of the Act) by reason of the respondent being permitted to be represented by a lawyer. The Court said:
“ The alternative and more confined submission, however, should prevail. In reaching the conclusion that the Full Bench erred in concluding that the hearing before the Senior Deputy President was “fair and just”, it is respectfully considered that the Full Bench failed to take into account:
• the fact that Mr Warrell was functionally illiterate and brain damaged;
• the failure on the part of the Senior Deputy President to make findings of fact relevant to her apparent conclusion that the requirements imposed by s 596(2) had been satisfied; and
• the manifest advantages that Bacto Laboratories would have in cross-examining Mr Warrell and the manifest difficulties confronting Mr Warrell in his questioning of Mr Carter.
In support of its contention that the hearing was not “fair and just”, reliance was also placed upon the failure of the Senior Deputy President to:
• provide reasons for apparently granting permission to Mr Butterfield.
The absence of any reasons for granting permission is only reinforced by the comparatively simple and confined factual dispute that arose for resolution. Mr Warrell gave one account of a conversation with Mr Carter; Mr Carter gave a different account. There was an absence of any “complexity” for the purposes of s 596(2)(a). Nor was there any self-evident reason why Bacto Laboratories could not fairly represent itself for the purposes of s 596(2)(b). Nor was any apparent consideration given to “fairness between the parties” for the purposes of s 596(2)(c). Why one or other of the constraints imposed by s 596(2) was satisfied is far from apparent.
 Even if the constraints imposed by s 596(2) can be left to one side, the potential for unfairness readily emerged during the hearing. This potential for unfairness to Mr Warrell was compounded when, having apparently granted permission to Bacto Laboratories to appear by way of Mr Butterfield, the Senior Deputy President proceeded to make findings adverse to the credit of Mr Warrell based upon his cross-examination and proceeded to accept Mr Carter as “a witness of truth” when he was not exposed to any effective cross-examination. Whether or not the same conclusions may have been reached by the Senior Deputy President had Mr Butterfield not been granted permission to appear for Bacto Laboratories or had Mr Warrell himself sought and obtained permission to appear during the hearing by way of a lawyer may also be left to one side. The unfairness to Mr Warrell had its roots in the failure at the outset on the part of the Senior Deputy President to apparently consider the terms of s 596(2) and the potential prejudice thereafter experienced by Mr Warrell in being effectively cross-examined by a lawyer. Having granted permission for Mr Butterfield to appear, the ‘damage was done’.
 Neither on a review of the reasons for decision of the Senior Deputy President nor the transcript of the proceedings does it appear that any consideration at all was given to the constraints imposed by s 596(2). Nor was there any apparent consideration given to the manner in which the discretion was to be exercised – even if s 596(2)(a), (b) or (c) was satisfied. These matters cannot be regarded as some mere oversight assuming no real importance or exposing Mr Warrell to no real prejudice. Given the nature of the issues to be resolved by the Senior Deputy President and the difficulties confronting Mr Warrell, it is not self evident that Bacto Laboratories could have readily satisfied one or other of those constraints.
 It is thus concluded that the Senior Deputy President either erred in granting permission for Mr Butterfield to represent Bacto Laboratories or in failing to consider whether one or other of the constraints imposed by s 596(2) had been satisfied. A decision which fails to properly address whether permission should be granted or refused in the present proceeding had the consequence that the hearing was not “fair and just” as required by s 577(a). The Full Bench, it is respectfully concluded, erred in not so concluding.”
 The Court ultimately made orders quashing the Full Bench’s decision and directing the Full Bench to grant leave to appeal, uphold the appeal and remit the matter to a different single member of the Commission for rehearing. 6 We presume, as the foundation for the making of these orders, that the Court regarded the error of the Full Bench which it identified as being jurisdictional in nature, although the basis upon which that was so was not expressly stated in the decision and is not otherwise readily apparent. However, that is not a matter of great moment in this appeal because we are not confined to the correction of jurisdictional error, and any alleged error of law, even if non-jurisdictional in nature, may properly be raised in an appeal under s.604 of the Act.7 We accept as correct the analysis of s.596 in paragraph  of Warrell. The grant or refusal of permission to be represented by lawyers inconsistent with the requirements of s.596, as construed in Warrell, would constitute an error of law capable of consideration in a s.604 appeal.
 We consider that the Decision was attended by error in that the Commissioner, in determining the ATO’s application for permission to be represented by a lawyer, did not decide the issue by reference to the statutory criteria in s.596(2). We have earlier set out the Commissioner’s stated reasons for the Decision. Those reasons were concerned with the purported unfairness to Mr McAuliffe which would result from the ATO being granted permission to be represented by Mr Cross. However, to the extent that unfairness falls to be considered under the s.596(2) criteria, it is (under paragraphs (b) and (c)) unfairness to the party applying for permission to be represented by a lawyer or agent that is required to be considered. It may be accepted that fairness between the parties is required to be taken into account under paragraph (c), but only as relevant to the determinant criterion, namely whether “it would be unfair not to allow the person to be represented”. Mr Cross made submissions which went to all three criteria in s.596(2), and those submissions as earlier stated included the contention that it would be unfair to the ATO to refuse the permission which was sought. The Commissioner’s reasons do not disclose that those submissions were considered and it is apparent from the Commissioner’s reasons that the issue of representation was not determined by reference to the s.596(2) criteria.
 We also consider that the Commissioner fell into error in another respect. We have earlier set out the process by which the Commissioner determined the question of the ATO’s representation in the matter before him. What the Commissioner effectively did on 4 and 5 December 2013 was, in a commingled way, to grant the ATO permission to be represented by its solicitor, Mr Noakes, but refuse it permission to be represented by its counsel, Mr Cross. In doing so, what the Commissioner did in substance was to select who, from the ATO’s legal team, would represent it at the hearing. That was not a course authorised by s.596. The power conferred by s.596(2) is simply to “grant permission for a person to be represented by a lawyer or paid agent in a matter”. Nothing in that language suggests that the power extends to the selection of which particular lawyer or paid agent will represent a party applying for permission. In the proceedings below, the duty of the Commissioner was either to grant or refuse permission for the ATO to be represented by a lawyer. It was not within the power conferred on the Commission to choose who that lawyer would be either by reference to the individual identity of the lawyer or by reference to whether the lawyer was a barrister or a solicitor. We do not consider that the power in s.596 was intended to interfere with a party’s right to choose who its legal representative (or paid agent) would be if permission was to be granted.
 We note that in its submissions the ATO went further than this and advanced the proposition that, in the exercise of its power under s.596(2), the Commission could not even have regard to who the lawyer or paid agent representing a party would be if an application for permission was to be granted. This would mean, for example, that in a matter with some minor legal complexity the Commission could not in deciding whether to grant or refuse permission take into account that a party proposed to be represented by senior counsel, or that it could not have regard to the fact that a particular paid agent in relation to whom permission was sought had been the subject of adverse integrity findings in earlier Commission decisions. We doubt the correctness of this submission, given that under s.596(2) and consistent with the analysis in Warrell it remains for the Commission to exercise a general discretion as to the grant of permission once any of the prerequisite criteria in s.596(2) have been satisfied. However, we do not consider it appropriate to determine this issue in a definitive way because it is not necessary for the disposition of this appeal to do so and because there was no proper contradictor in the appeal on that issue.
 We accept the importance which the Association and the ATO placed in their submissions upon the early determination, where practicable, of applications for permission for representation by a lawyer or paid agent. The Commission’s Fair Hearings Practice Note, which took effect on 22 July 2013 and is published on the Commission’s website, establishes a procedure for the early determination of representation issues in appeals and unfair dismissal remedy applications as follows (underlining added):
“47. Any party that wishes to apply for permission to be represented at an appeal hearing by a lawyer or paid agent will generally be given directions by the Commission to identify, in writing:
• the lawyer or paid agent they are seeking permission to have as a representative; and
• the reasons why permission should be granted, having regard to the matters outlined in s.596(2) of the Act.
48. The party will be required to lodge this request with the Commission, and serve it on the other party. The other party will then be given an opportunity to respond to this request, in writing, indicating whether they oppose the request for permission and, if so, the grounds for their opposition to the request. Where possible, the Commission will determine whether permission will be granted based on the material filed, and will advise the parties of the outcome prior to the hearing of an appeal.
49. A similar procedure will apply to applications for permission to be represented by a lawyer or paid agent in proceedings before the Commission for the determination of unfair dismissal claims at first instance.
50. Parties seeking to be represented in a conference or hearing should not assume that permission will be granted. Parties need to be prepared to proceed with a conference or hearing in the event that their representative is not permitted to appear. In the event that permission to be represented by a lawyer or paid agent is not granted the party may seek an adjournment, but whether an adjournment is granted will be a matter for the Member concerned and should not be assumed.”
 That procedure, if followed by Members of the Commission and parties, will avoid the difficulties which will inevitably face any party which has instructed a lawyer or a paid agent to represent it at a hearing but has permission to be represented by such a lawyer or paid agent refused at the commencement of the hearing. It is for that reason that the procedure set out in the Fair Hearings Practice Note should generally be followed. We do not, however, accept the Association’s submission that the apparent failure in the proceedings below to decide the issue of permission for representation in accordance with the Fair Hearings Practice Note constituted an error as such. Unless the late determination of an application for permission under s.596(2) causes a denial of procedural fairness or some other variety of serious prejudice to a party, it cannot be said that this alone could constitute an appellable error. As earlier stated, neither the Association nor the ATO contended that any such prejudice had resulted in the hearing before the Commissioner.
 Although we have identified two respects in which we consider that the Decision was attended by error, it does not follow that the grant of permission to appeal necessarily follows. The mere demonstration of error, without more, may not be sufficient to attract the public interest and require the grant of permission to appeal. 8 Further, the lack of any useful result which would follow the upholding of an appeal on the basis of identified appellable error may lead to permission to appeal being refused.9 In this appeal, the ATO has positively denied that it was prejudiced by the Decision, and both the Association and the ATO actively seek to avoid any order being made by us which would have any impact upon the course of the proceedings before the Commissioner. In that circumstance, it is clear that there would be no utility in us granting permission to appeal, upholding the appeal and setting aside the Decision. Indeed, were we to do so, on one reading of Warrell that would cast doubt upon the jurisdictional foundation for the substantive decision which the Commissioner will ultimately be required to make. We have therefore decided to refuse permission to appeal.
 That conclusion makes it unnecessary for us to consider the question of whether the Association has standing to bring its appeal. We would simply observe that although the “person aggrieved” test for standing has been interpreted to have a wide field of operation, the case for standing here is a borderline one.
 Permission to appeal is refused.
A. Moses SC with Y. Shariff of counsel for the New South Wales Bar Association
I. Neil SC with J. Darams of counsel for the Commonwealth of Australia, represented by the Australian Taxation Office
P. Macken, solicitor, for Brett McAuliffe
1 (1996) 137 ALR 70 at 90-91
2  FWAFB 4337
3  FCA 291 at -
4 Workplace Relations Act, s.100(5).
5  FCA 291
6 Warrell v Fair Work Australia (No 2)  FCA 402
7 Allan v Australian Postal Corporation  AIRCFB 34 at 
8 GlaxoSmithKline Australia Pty Ltd v Makin  FWAFB 5343 at -; Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth  FWAFB 10089 at , affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler  FCAFC 54
9 See Ferrymen Pty Ltd v Maritime Union of Australia  FWCFB 8025 at  and the decisions there cited.
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